DANIEL A. COBBINA AND YAW DERKYI
1936
WEST AFRICAN COURT OF APPEAL
GHANA
CORAM
- Cor. KINGDON
- PETRIDES
- WEBBER
- C.JJ
Areas of Law
- Contract Law
- Property and Real Estate Law
- Civil Procedure
- Equity and Trusts
1936
WEST AFRICAN COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
The appellate judgment by Kingdon C.J., Nigeria, concerns disputes following a 26 February 1934 mortgage granted by two cocoa farmers to creditor Kweku Edusei, against the backdrop of a 1933 judgment for £150 plus costs. While enforcing by Ca. Sa., the second plaintiff, Yaw Derkyi, was jailed; two sureties raised £50, which D. A. Edusei paid to Edusei. The core controversy was whether the £50 was a deposit to be refunded upon full satisfaction by the principal debtor or part payment reducing the debt. The Divisional Court rescinded the mortgage for nondisclosure and adjusted the balance to £58 5s. 6d. On appeal, Kingdon C.J. rejected the referee 's reasoning, preferred evidence showing a deposit, set aside rescission, and recalculated the amount due to £131 8s. 6d. The court affirmed sequestration of promissory notes, preserved redemption on payment within six months, and awarded costs to the appellant without a stay of execution for costs.
The following judgment was delivered :KINGDON, C.J., NIGERIA.
In this case the plaintiffs by their writ claimed :-
" 1. To have a deed of mortgage dated the 26th day of February, 1934. and made between the plaintiffs of the one part and defendants of the other part rectified or rescinded on the ground of mistake and/or fraud.
" 2. For an account to be taken of what money if any is due by the plaintiffs to defendant in respect of a contract of loan or a loan transaction between plaintiffs and defendant which said loan transaction was to have been the subject-matter or consideration of the aforesaid deed of mortgage.
"3. For redemption of the property of the plaintiffs comprised in the said mortgage to wit: One (I) cocoa farm situate at Mansu Road belonging to the first plaintiff and one (1) cocoa farm situate at Atobuasi belonging to the second plaintiff.
"4. For an injunction to restrain the defendant his agents or servants from in any way interfering with or alienating or disposing of the said property comprised in the aforesaid deed of mortgage."
On the case coming before the Divisional Court, Kumasi, the question of accounts between the parties was referred to Mr. Samuel Bannerman, Registrar of the Court, to report as referee, all questions of law being reserved for the Court.
The Referee found that the total liability of plaintiffs to defendant amounted to £181 5s. 6d., and that against this two sums, one of £34 17s. and the other of £50, had been paid, leaving a balance of £96 8s. 6d. due.
The Divisional Court on considering the report
1. Ordered the rescission of the mortgage on the following grounds :-
" Hold that this mortgage should be rescinded £50 was paid to the creditor-defendant herein-by a surety to the original transaction, D. A. Edusei, in consideration for stay of execution on principal debtor-a plaintiff herein. This I hold ought to have been disclosed.
•• This mortgage was executed to secure to defendant herein a debt for which he had already obtained judgment-plus some additional interest. This practice of creating a new cause of action on a matter in which judgment is already entered is to be deprecated."
2. Disallowed and ordered the sequestration of the promissory notes exhibited in the case and marked "B" and "r" respectively.
and 3. Found the balance due to defendant was £58 5s. 6d., the difference of £38 3s. between that sum and the £96 8s. 6d. found by the Referee being made up as follows :-
£20 further intere